UD423/2014, UD587/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                      CASE NO.

Walter Jones                           -Employee                                          UD423/2014

against the recommendation of the Rights Commissioner in the case of:

Walter Jones

-v-

Bulmers Limited                                                                                UD587/2014

                                                -Employer

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. N. Russell

Members:       Mr. J. Browne

Mr. F. Dorgan

heard this appeal at Waterford on 4^th March 2015, 13^th, 14th, 15th July 2015

and 22^nd and 23^rd September 2015                          

Representation:

Appellant:       Ms Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    Ms Lorraine Smyth, Byrne Wallace, Solicitors, 88 Harcourt

                        Street, Dublin 2

Background:

The above case came before the Tribunal by way of an employee and an employer appealing a Rights Commissioner’s Recommendation under the Unfair Dismissals Acts, 1977 to 2007, ref: r -125763-ud-12/GC. The Rights Commissioner in finding that the employee was unfairly dismissed awarded the appellant a sum of money as compensation.

The employer is a large beverage manufacturer. The dates for the employment and the gross pay figure were agreed by the parties as stated on the papers to the Tribunal. The employee is seeking re-instatement but is currently unfit for work. The employee had a clean disciplinary record and was the chief shop steward.

Respondent’s Case:

GC, a Front Line Manager in the Warehouse Department gave evidence to the Tribunal that he was the employee’s direct line manager since 2008. The main duty of the employee was the operation of a forklift within the factory. There are different shift patterns in operation in the factory, one of which pays a shift premium. Operators move between the different areas of the factory as per work requirements which vary depending on the time of year.

The managers meet weekly to discuss employee resources required in the different areas of the factory. Operations department interchangeability is provided for in an agreement with the union on flexibility which has been in place since March 2009, as part of a survival plan for the company. The deciding factors for interchangeability selection are the number of employees required in each area and the skills of the available employees. One week’s notice of the change in shift pattern should be given to the employees who are transferring but payment in lieu can be provided by the company.

An employee resource meeting was held on 2 February 2012 and a decision was reached that the employee in this case would transfer to the production/canning line as he was a competent employee albeit that he would have required some training specific to the role. Prior to the employee being asked to transfer, other employees had also been transferred to the production line. There was to be no change in the level of pay.

It was GC’s evidence that he and his colleague AR, (Front Line Manager for the production/ canning line) met with the employee in this case on Friday, 3 February 2012 and informed him of the transfer which was to take place the following Monday, 6 February 2012. The employee became agitated immediately, stating that he did not have to transfer and querying his selection. GC explained that a permanent employee was required on the production line which usually operated with temporary employees. However, the exchange escalated and the employee shoved his fingers in the manager’s face and called AR a “p***k.” AR stated that he was going to contact the human resources department. Following a further verbal exchange GC put up his hands to restrain the employee who was coming towards them.

The employee later returned to the office and told AR that his mother was recently diagnosed with a serious illness and he apologised for his actions. AR told the employee that he was not accepting his apology and that it was a matter for human resources.

GC reported the matter to both the Production Manager (EOG) and to CE of the human resources department. The employee was suspended with pay pending an investigation. GC provided a statement and attended a meeting as part of that investigation.

The employee made an allegation under the bullying and harassment policy that he was pushed by GC. The disciplinary process was suspended while the grievance process was conducted. It was GC’s evidence to the Tribunal that when he put up his hands, the force was emanating from the employee not from him. The employee alleged that GC had physically assaulted him and that there was collusion between the two shift managers but this was refuted by GC. He stated that their statements were similar as they had both recounted the truth of what had occurred at the meeting.

The witness attended a number of meetings as part of the grievance process and these were detailed to the Tribunal. It was GC’s evidence that while he may have heard the employee raise his voice on occasion in the factory he had never before seen him act in the manner outlined. GC found the actions of the employee to be aggressive and intimidating and he thought that the employee was going to strike AR. He did not think that he could work with the employee again given the lies he had told and the false accusations he had made against GC.

During cross-examination GC explained that the employee was selected from a pool of four employees. The employee in question was selected due to his scanning and forklift skills. Three other operators have since transferred without issue. Had the employee in question a concern about transferring it was open to him to raise this through the grievance process.

GC refuted that the employee had raised the fact that he did not have training in the production area and that the transfer could be detrimental to his health and safety. He added that training would have been provided as soon as the employee transferred.

GC accepted that in the first statement he provided he did not state that the employee pointed his fingers at AR but later stated this at a meeting conducted during the investigation. He stated that there may a difference in his statements but he recalled the matter as honestly as possible each time he was asked to provide a statement. He refuted that he changed part of his statement to match his colleague’s account of the meeting.

It was put to GC that AR started to shout at the employee outside the office, that the employee smelt alcohol from AR and tried to retreat but that AR pursued the employee and was “ranting and raving.” GC refuted this account and he also refuted that the employee had told him the previous week of his mother’s diagnosis.

In reply to questions from the Tribunal, he agreed that his actions could be described as a block, thus preventing the employee from hitting AR.

Evidence heard on 13^th, 14^th and 15^th July 2015:

The Tribunal heard evidence from AR, who is a packaging manager and at the time of the incident was a shift manager. The witness explained that on a canning line there are seven persons on a shift; six of whom are operatives and one store man. There are six or seven machines and one forklift. There are three shifts of 6.00 am to 2.00 pm, 2.00 pm to 10.00 pm and 10.00 pm to 6.00 am. They are busiest during the summer months and before Christmas and before the October budget and at the end of the financial year. The witness explained that he was looking for staff to come into his area for the busy summer period. The work in his area was more demanding than warehouse work.

Regarding the transfer of the claimant to his area he had the option to accept the claimant or reject him, however he did not have an issue with the claimant transferring.

Regarding the incident on 3 February 2012 he gave a statement to the HR department on, who typed the statement for him and he signed his statement on 7 February 2012. The witness opened the statement to the Tribunal.

The witness explained what had happened on 3 February. He and a colleague went to the claimant to explain to him of a change. The claimant started to shout at them. The claimant told them that he was not trained in the work and that he did not have to do it. The claimant was very aggressive. The witness explained that claimant had placed his finger and fist right beside his face and that the Claimant’s head was “half a millimetre” from his face. The claimant used the word “p***k”. The claimant said that there was a smell of “s***” from him. Regarding drink/alcohol, he had not been drinking for weeks as he had been training for a marathon. He also told the Tribunal that he was convinced that if GC was not present then the claimant would have hit him. The claimant did apologise to him on a number of occasions.

The witness gave evidence as to a bullying and harassment investigation that the claimant had complained of.

The Tribunal heard evidence from EO’G who was the production manager at the time and is now the general manager for the site. He explained that employee resource meetings (ERM’s) took place. At one meeting they decided to move the claimant to the canning area. At a later time AR phoned him to tell him about the incident with the claimant. Then minutes later GC phoned him as well. He decided to meet them to find out what had happened. He first asked AR and then asked GC, and their stories were similar. He then phoned the HR manager (CE) who he told the Tribunal has since passed away. He and CE decided to suspend the claimant with pay until he could give his side of the story.

The witness explained various meetings that were held after. At some point in time the investigation had to be placed on hold because of a bullying and harassment allegation being made by the claimant. The allegation was not upheld and they continued with the “investigation under the disciplinary procedure” as outlined in a letter to the claimant dated 24 February 2012, which was opened to the Tribunal. The minutes of the investigation meeting of Friday 2 March 2012 were opened to the Tribunal.

The witness was asked to explain the rationale as to how he and CE came to the decision to dismiss. He explained that they looked at the totality of the situation; both he and CE felt that the bond of trust had been broken. Also having viewed the statements of GC and AR and the counter claim of the Claimant. Also the Claimant knew about interchangeability and that they were trying to manage work in line with agreement of the union and the claimant was the chairman of the union side. Finally the witness explained that he believed that the trust between the management and the claimant had broken on 3 February. He stated that it was not an easy decision, that the claimant was the first and only person that he had dismissed in all his years and he hoped not to do it again. The witness further stated that “the bond of trust was completely gone and eroded”. “something happened on 3 February and we had to believe one side or the other”; “I believed and CE believed CG and AR more than the claimant”. The claimant was informed in the letter of dismissal of his right of appeal and he did appeal the decision to POS and AM.                                                                                                                                                                                                                                                                                            

Regarding moving from one part of the site to another the witness explained that it had been agreed with the unions. He believed that it was a reasonable request and he did not pick the claimant’s name out of a hat and that the claimant’s name had been put forward by the managers and they moved people all over the plant all year round. The move was not to inconvenience the claimant and the claimant’s reaction was over the top.

The Tribunal heard evidence from POS who heard the appeal of the dismissal. The appeal was not successful.

The Tribunal heard evidence from TG. She explained that she had interviewed AR and GC “purely on the allegation” of the claimant to ascertain “if bullying and harassment took place”.   She provided the claimant with a copy of information for the claimant to respond. The witness outlined the process/ meetings that occurred. A letter dated 23 February 2012 was opened to the Tribunal. The letter was the conclusion of the investigation into the allegation of the claimant of bullying and harassment by GC and AR. The finding was that GC and AR did not verbally intimidate or bully the claimant and GC did not physically assault the claimant.

The witness was asked by the Tribunal to clarify regarding a distinct disciplinary meeting. The witness explained that they had received a certified sick note from the claimant and that the process was taking its toll on the claimant and “on their side” and that the process was protracted i.e. from February to May (2012). Further on he was asked about the gap in procedures and he answered “there was no (communication) from (the Claimant)”. He was asked to explain why the claimant was dismissed on 16 May when he had a sick certificate until 18May. He explained that the process “had been going on for months and months and it was coming into a busy period”. The witness explained that he and CE had discussed the matter and it might have been an oversight.

Evidence from 22 and 23 September 2015:

Claimant’s Case:

Dr. O’L, psychiatrist, gave evidence that the claimant attended her practice on 31 October 2012 following a referral to her. She had no knowledge of him prior to this date. She told the Tribunal that the claimant presented with symptoms of anxiety and depression. She gave evidence that he was severely affected by events in the workplace of February 2012. He was no longer socialising and felt that he was being judged by people. He felt ashamed of having been dismissed from his employment and because of that he was avoiding company. In her opinion he was mildly to moderately depressed. She prescribed a number of courses of anti-depressants and he was also put on a number of one to one nursing sessions.

She told the Tribunal that the claimant last visited her practice on 23 July 2015. She was not aware of any other factors that contributed to his depression. She accepted that his mother’s passing was an issue for him but believed that he had got over that bereavement. She told the Tribunal that he has a good supportive wife and mother-in-law. He is currently on large amounts of medication but she believes that the drug most needed by him is to have his name cleared and to be reinstated to his former position. She told the Tribunal that this would be the starting point for the claimant and it is most important for him to have his name cleared.

She gave further evidence that she does not believe that he could return to work immediately. She was unable to provide a time frame as to how long that process would take but he could work towards returning to work over time. He wants to have his name cleared and if that was done he can work towards returning to work. She has not had any discussions with him in relation to possibly returning to the same work environment from where he was dismissed.

The claimant gave direct evidence that he commenced working for the respondent on 23 May 2000. He held multiple positions within the company and was also a shop steward. He gave evidence that he was called to a meeting at 12.10pm by (GC) on 3 February 2012. He was not told of the nature of the meeting and his shift was due to end at 1pm. When he attended for the meeting (AR) was also present. He was told that a decision had been made that he was to transfer to the canning line from the following Monday. He informed both managers that he had no experience or no formal training on the canning line and stated that it could be detrimental to his health and safety. He also pointed out that he was entitled to one week’s notice of the transfer in accordance with an LRC agreement dated 27 March 2009 (a copy of which was opened to the Tribunal). He told the Tribunal that (GC) replied that this is how it is going to be done regardless of the agreement. He confirmed to the Tribunal that payment in lieu of notice could be acceptable but this was the choice of each individual and, in that regard a copy of a SIPTU letter dated 22 October 2009 was opened to the Tribunal.

The Tribunal heard further, detailed evidence from the claimant in relation to the ensuing altercation/exchange that occurred between (GC), (AR) and himself which culminated in him being suspended on full pay pending an investigation. He was told to clock out and go home which he did at 12.53pm.He subsequently provided a detailed statement of his account of events on 3 February 2012. He outlined his account in detail to the Tribunal and challenged the statements of (GC) and (AR), pointing out numerous inaccuracies and allegations made by both. He denied that their statements were accurate versions of events and pointed this out to the investigators. He told the Tribunal that the issues he raised were never investigated. He believed that the company were only interested in ascertaining his wrongdoing rather than ascertaining what actually happened on 3 February 2012. Both (GC) and (AR) had changed their statements, yet nothing was done about this. He gave evidence that (GC) and (AR) had colluded in making their statements and their statements were taken at face value. He was the only person suspended in relation to the incident and any evidence he produced was brushed over. He had been pushed by (GC) during the incident and he requested that this matter be dealt with under the company’s bullying and harassment policy yet the company found that (GC) had not assaulted him.

He gave further evidence that in October 2011 his mother was told that she had six months to live. He informed (GC) of this at the time, explaining that he may need some time off. He discussed it with (GC) and it was common knowledge within the company that his mother was ill.

The claimant gave further evidence that he had no confidence in the investigation team and believed that the investigation should have been conducted by an external person. The company never addressed issues which he had raised and (GC) and (AR) were never challenged on the similarities of their statements. It was blatant to him that they had been guided in that direction and they were never challenged as to why they had changed their statements. He did not believe it to be a fair process and his evidence was not given the same weight as those of (GC) and (AR). He gave evidence that minutes of meetings provided to him in relation to meetings which he attended were not accurate and when he challenged the company on this nothing was done. He did not believe that (CN) had any understanding of the company/union agreement in relation to the notice period regarding interchangeability. He received a letter dated 9 May 2012 inviting him to a meeting on 16 May 2012 where he was to be informed of the outcome of the investigation under the disciplinary procedure. He forwarded a medical certificate to the company confirming his absence on medical grounds from 11 May 2012 to 18 May 2012.The company proceeded to hold the meeting in his absence, and he was informed by way of letter dated 16 May 2012 that his employment was terminated with immediate effect from 16 May 2012. He was given five days to appeal this decision. He appealed the decision and an appeal hearing was held on 18 June 2012. The appeal did not go in his favour and the decision to dismiss was upheld.

He believed that the company adopted the same approach throughout the whole process and factual elements which he raised were overlooked. It was evident to him that the company had taken sides from an early stage and the investigation was not carried out fairly or credibly. He believes that it was a one sided investigation. At the moment he is going through a healing process and believes that reinstatement to his employment would aid this healing process. He does not hold any animosity towards any of his former colleagues and stated that there is plenty of space that he could slot into within the company.

Determination:

It is the opinion of the Tribunal that the Investigation of the Incident of the 3rd February 2012 was fundamentally flawed and that these flaws became evident during the process. An Investigation must be free of bias and be objective and must be seen to be so.

While the presence of a significant amount of paperwork and the evidence of numerous meetings may have the veneer of a fair and objective Investigation and Process, the fact of the matter is that the presence and evidence of such may not speak to a proper investigation or fair process

The background to the incident of the 3rd February 2013 is that, in the Opinion of the Tribunal, following a Meeting of Managers on the 2nd February, the Claimant was informed as a “fait accompli” that he was being moved to the Canning Line at short notice in circumstances that the Tribunal believes did not comply either with the terms or spirit of the Agreement around Interchangeability negotiated in 2009 to provide flexibility within the workplace. The Tribunal is further of the view that it was not entirely unreasonable of the Claimant to have concerns nor was it unforeseeable that the manner in which the decision was delivered to the Claimant might prove somewhat provocative.

The Tribunal is not convinced that the full truth of what occurred during the incident of the 3rd February has been forthcoming from any of the three parties involved, however, it is not the role of the Tribunal to reinvestigate

The obligation on the Respondent was to carry out a fair, objective and unbiased Investigation and to arrive at reasonable conclusions as to what occurred.

It was wholly inappropriate for those who conducted the Investigation to be members of Management where two of the participants in the incident of the 3rd February were members of Management and where there was a complete conflict between the Mangers involved and the Claimant as to what had occurred Indeed, the two Investigators, CE and EO’G, were part of the meeting that made the decision to move the Claimant to the Canning Line, being the decision which upset the Claimant and was the catalyst for whatever occurred on the 3rd February 2012. Further, on the evidence presented to the Tribunal, it appears that there was a private discussion between GC and CE and EOG on the 3rd February which led to CE and EOG suspending the Claimant without as much as hearing from him.

The failure to have any due regard in the investigation to the origin of whatever occurred on the 3rd February 2012 and, in the Tribunal’s opinion, to robustly challenge AR and GC on the issue of collusion speak to undue influence by Management on the Process and inappropriate deference to the positions of GC and AR. The clear change of position as to whether GC “pushed” or “restrained” and the “massaging” by both CC and AR of their initial statement on this issue should have triggered far more robust and probative questioning had an independent, objective Investigator been on the job. There was an inevitability that this would occur where the Respondent failed to ensure the independence of the Investigative Process. If ever there was a situation where an Independent Investigator should have been brought on board this was the one.

EO’G and CE should simply have bowed out from the outset as they were simply too close to the overall situation and to a number of the parties involved. The very manner in which the Claimant’s employment was ultimately terminated by EOG is suggestive of him being less than independent in a number of respects and would further suggest that other influences were at play during the process.

It may well be that an Independent Investigator, following a robust and probative process, might have ultimately arrived at the same conclusions, however, at this point we will never know.

Had there been an Independent Investigation that arrived at the same conclusions, it would have been reasonable to proceed to a Disciplinary Hearing.

Notable in this case is that no Disciplinary Hearing was held at all. The Investigators, having arrived at conclusions, simply documented their findings and, in so doing, moved to immediate Dismissal within the same letter that set out the findings of the Investigation . This is a further fundamental flaw.

The Tribunal is satisfied that the Claimant was denied the opportunity as a result to make representations at a Hearing convened to decide sanction and, indeed, to put forward, mitigating factors for consideration. Further, the Claimant was entitled to such a Hearing before a party or parties other than those who conducted the investigation. In a Company with resources and full HR support, this deficiency in the Disciplinary Process is unacceptable.

The Tribunal finds it to be inexcusable that, in circumstances where the Claimant was on a Sick Certificate for “acute anxiety and stress related illness” from the 11^th May 2012 to 18th May 2012, the Claimant was dismissed on the 16th May without a Disciplinary Hearing and in circumstances that indicate undue haste. It is clear to the Tribunal that the Respondent had tired of the Process and, further, had allowed its decision to dismiss to be influenced by extraneous matters such as the Respondent’s desire to improve issues of communication on the ground within the workplace and with the workers Union in circumstances where the Claimant’s (Shop Steward) suspension had disrupted these.

Even had the Respondent dealt with this matter in a procedurally correct manner, the Tribunal is of the view that the sanction of Dismissal would have been unduly harsh and, in this respect, agrees with the conclusion reached by the Rights Commissioner.

It is clear to the Tribunal that other forces were at play in the decision to dismiss, specifically, as recounted by EOG General Manager to the Tribunal the belief that there would be “repercussions” for the Management Team if any sanction short of Dismissal was applied and the Claimant returned to work.

The rights of the Claimant as an individual and employee were sacrificed at the altar of Corporate Exigency. The Tribunal recognises the pressures that exist for Industry in a competitive marketplace but, within such a pressurised environment, Individual rights must be respected. The Claimant was unfairly dismissed.

The Tribunal concludes after lengthy consideration that the only appropriate remedy in this instance is re-engagement. It is satisfied that the Claimant can and will reintegrate into the workplace and the Tribunal sees no valid reason why that reintegration cannot be accommodated.

Accordingly, the Tribunal determines that the Claimant be re-engaged by the Respondent within (9) months of the date hereof on the production by him of a Certificate from Dr. Zubaidah O’Leary Consultant Psychiatrist South Tipperary Mental Health Centre, Glencorner, Road Clonmel, County Tipperary (or from a Physician of equivalent qualification and standing) confirming his fitness to return to work.

Re-engagement shall be on the same terms and conditions as enjoyed by the Claimant prior to his Unfair Dismissal save where varied by any general changes made to those terms and conditions during the Claimant’s absence. The Claimant shall enjoy full Continuity of Service from the 12th May 2000 to his return. No Compensatory Award is made.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)